1601105 (Migration)

[2016] AATA 4448

1601105 (Migration) [2016] AATA 4448 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilbag Singh Gill

CASE NUMBER:  1601105

DIBP REFERENCE(S):  BCC2015/3203596

MEMBER:James Jolliffe

DATE:27 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 27 September 2016 at 3:02pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 January 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not, or was not likely to be, a genuine student . The delegate had noted that the applicant’s attendance in enrolled courses was low and that he had not completed any courses. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was initially represented in relation to the review by his registered migration agent but the applicant told the Tribunal he was no longer represented.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed

   Consideration of Claims and evidence

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116 (1)(fa)(i) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. The Department file indicates that the applicant was sent by email on 21 December 2015 a notice of intention to consider cancellation of his student Visa. In summary the notice referred to the statutory basis for the consideration of the cancellation pursuant to s.116(1)(fa)(i) of the Act. The notice referred to the applicant have been been granted a student Visa on 27 June 2014. The notice referred to the applicant having commenced a course on 29 September 2014 in certificate IV in business administration at Zenith business Academy ("Zenith"). The notice referred to the Department having obtained the applicant’s attendance records and information about his course assessment. The notice referred to the education provider providing documents to the Department that indicated that the applicant’s average attendance in the course was “around 40%”. The notice referred to the applicant on 12 October 2015 having commenced study at Infotech professionals proprietary limited trading as International Institute of business and information technology (" Infotech"). The notice referred to the applicant undertaking a course in Advanced Diploma of Leadership and Management. The notice referred to the Department having been provided by the education provider with information that indicated that the applicant had only achieved an attendance rate of 2.5% in that course in terms of the first four weeks of that course. The notice informed the applicant that it appeared that he was not or not likely to be a genuine student. The notice provided information about the consideration of the cancellation of his student Visa and invited him to provide a written response to the notice within five working days after he was taken to have received the notice. The notice also provided information about the consequences of the cancellation of the applicant’s student Visa.

11. On 27 December 2015 the applicant sent a written response to the notice. In summary the applicant claimed that the grounds for cancellation of his student Visa did “not exist”. He denied that his attendance at his education providers had been less than was required. He claimed that if he had been in breach of attendance requirements that the education providers would have followed procedures “as laid down in standard 11”. He claimed that he only ever received one letter dated 21 September 2015 from Zenith business Academy proprietary limited stating that his attendance was unsatisfactory and that did not refer to his actual attendance. He claimed that he was not satisfied with the quality of education provided by Zenith business Academy and had notified that education provider that he was changing education providers. He claimed that Infotech professionals proprietary limited had not raised any issue with him in relation to his attendance and that if his attendance was less than required the education provider would have followed “standard 11 procedures and would have informed me”. He claimed that he was a genuine student and had complied with his Visa conditions.

12. A Department delegate considered the applicant’s situation and decided to cancel the applicant student Visa. He was notified of the delegate’s decision in a document forwarded by email to him on 27 January 2016.

    TRIBUNAL HEARING

13. The applicant appeared before the Tribunal on 20 September 2016. He told the Tribunal that he was no longer represented by his former migration agent. The Tribunal told the applicant that he needed to provide information to the Tribunal about his current contact arrangements. The applicant confirmed his name and personal details to the Tribunal.  He provided details about his family in India and told the Tribunal that his brother had recently come to Australia to study. He said his parents in India had paid his fees for some of his courses but were not supporting him as such in Australia. He also referred to his cousin in Australia having helped him. He produced his passport which was sighted by the Tribunal. He provided the Tribunal with a statement from him which was undated as well as a copy of a confirmation of enrolment document for an Advanced Diploma of Business with the education provider being Elizabeth Bence Proprietary limited. He also provided a "reference letter" from his cousin. He also provided a letter dated 19 September 2016 from the Management Institute of Australia to the effect that it confirmed that the applicant had enrolled with that Institute to undertake a Diploma of Business on 16 June 2016. The letter said that the applicant had completed all the requirements to retrieve that qualification via recognition of prior learning process and the letter referred to the assessment criteria for the grant of the qualification.

14. The statement provided by the applicant at the hearing, in summary, referred to the applicant having arrived in Australia on 10 July 2014 and the statement referred to the applicant obtaining admission at the Zenith Business Academy and that he enrolled in a business course (certificate 4). The statement referred to the applicant facing difficulties in the first term of his studies in terms of understanding what was being taught. The statement referred to the applicant having attended the course for six months and having prepared assignments but that he was unable to pass the course. He claimed to have resubmitted the assignments but he again failed. He claimed to have become depressed and unmotivated and claimed that he stayed at home. He claimed his attendance at the course "" was short".

15. He claimed that he made a decision to change his college and spoke to an agent to get advice. He claimed that he then got admission into IIBIT Academy of English (“ English Academy”). He claimed he then received a telephone call from the Department and that he was told that he needed to provide a new confirmation of enrolment at a university. He claimed that he had left Zenith Business Academy and claimed his confirmation of enrolment at the "victoria uni'' had also been cancelled. He claimed he was frustrated with these developments and did not know what to do. He also claimed that his family was experiencing problems as his mother was unwell and the applicant claimed he was disturbed "mentally and physically". He claimed that he was getting assistance financially but that he was stressed. He claimed his agent told him to pay to obtain a certificate of enrolment but he was unable to obtain a certificate of enrolment. He claimed he remained  in the English Academy but was then told that his student Visa had been cancelled. He claimed not to have told his parents about the cancellation of his Visa. He referred to not wanting to cause his mother any more worry because she was sick. He claimed to then be looking for a confirmation of enrolment but was unable to obtain a confirmation. He referred to having enrolled in another course and finishing his diploma and that he had enrolled in an advanced diploma which was to start in September 2016 and claimed to have "got a coe for the university named". He asked to be given another chance to finish his studies and "make my parents proud".

16. The reference from his cousin, in summary, referred to the applicant being "depressed and stressed due to his circumstances". The cousin claimed to have looked after the applicant and to have guided him when his Visa was cancelled and when he undertook further studies. The reference asked that the applicant be given "one chance to prove he is genuine student".

17. The Tribunal asked why the applicant had not provided the further statement and other documents sooner to the Tribunal given that he had been notified of the Tribunal hearing some time ago but had only provided the documents immediately before the hearing. The applicant told the Tribunal initially that he wished to have the hearing conducted in the English language but the Tribunal found that the applicant appeared to have difficulty in understanding the Tribunal's questions and the Tribunal was also having difficulties in understanding some of the applicant's responses. The Tribunal indicated to the applicant that the Tribunal believed that it was better as a matter of fairness to the applicant that the hearing was conducted with the assistance of the interpreter. Notwithstanding that the applicant made use of the interpreter the Tribunal found that on a significant number of occasions the applicant was unresponsive in responding to Tribunal questions and appeared evasive on occasions and vague in providing information and details.

18. The Tribunal referred the applicant to the notice of intention to cancel his student Visa which had been forwarded to him by the Department. The applicant said he did not agree with the information in that notice. The Tribunal referred to the applicant's reply to the notice and to the issues raised in that response. The applicant told the Tribunal that the reply that had been sent to the notice had been prepared by his former agent. The Tribunal referred to the warning letters that had been forwarded to the applicant by email from his education provider Zenith Business Academy. The applicant said that he could only recall getting one of those emails and that was the one dated April 2015. The Tribunal asked the applicant a number of questions about the warning emails from the education provider because of unsatisfactory attendance. The Tribunal noted in his reply to the notice of consideration of cancellation of his student visa the applicant claimed, apart from one occasion, not to have received warning letters/notices from the education providers. He told the Tribunal that reply was written by his representative. The reply from the applicant to the notice of consideration of cancellation of his student Visa referred to the applicant only receiving one letter dated 21 September 2015 from Zenith business Academy proprietary limited stating that his attendance was unsatisfactory (see paragraph 4 of that reply). As indicated the applicant told the Tribunal at the hearing that he recalled getting a warning email from that education provider in April 2015.

19. The Tribunal found it difficult on occasions to get the applicant to focus on the Tribunal's questions and to respond to those questions. The Tribunal told the applicant that on occasions he appeared to be evasive in responding to Tribunal questions. In particular the Tribunal asked the applicant about the circumstances in which an email had been sent to Zenith business Academy in September 2015 which said that the applicant wanted his enrolment in the course he was undertaking cancelled and that he was ceasing studying in Australia and he was returning to India. The applicant said that email had been sent by an "agent" who he could not name and who he said was helping him and to whom he had been introduced. The applicant claimed that he did not intend to cease his studies in Australia and return to India notwithstanding the contents of that email. The Tribunal noted that the applicant's evidence was that he had provided misleading information to the education provider. In essence the applicant said that the contents of the email on that occasion was the work of the unnamed "agent". The applicant said that he wanted the cancellation of the confirmation of enrolment from that education provider in order to be enrolled in another course. Despite questioning from the Tribunal about the identity of the claimed "agent" who he claimed to have sent the email the applicant was unable to provide any details other than to say that the person was in Melbourne. The Tribunal raised its concerns about the applicant's credibility in relation to this issue. He claimed he would be able to provide the details about the "agent" if given time by the Tribunal. The Tribunal subsequently allowed the applicant additional time after the hearing to provide further information but the Tribunal did not receive any additional information from the applicant regarding the identification of this “agent” although it did receive further documentation from the applicant about courses.

20. The Tribunal expressed its concerns to the applicant that he appeared to be evasive in responding to Tribunal questions about this issue. Another aspect that concerned the Tribunal was when the Tribunal asked the applicant about his employment in Australia. He told the Tribunal that he had worked at a car wash in Bankstown in Sydney but when asked for details initially struggled to provide any details to the Tribunal. The Tribunal pressed the applicant for details and he eventually said that he had worked at "unique car wash" in Banks town. The Tribunal also expressed its concerns to the applicant about this issue in terms of the Tribunal needing to ask repeated questions to obtain information about his employment and where the applicant claimed he had worked for some time and at 20 hours per week. The Tribunal referred to the information in the notice of intention to consider cancellation of the applicants student Visa . That information referred to the applicant having only attended 40% of classes with Zenith business Academy during a period when information was provided by the education provider to the Department. Another education provider provided information to the Department which indicated that the applicant had only attended at Infotech professionals proprietary limited 2.5% of the required time. The applicant said in relation to the 40% attendance issue with Zenith business Academy that was for a particular period and he claimed that he had attended classes for about six months but after he had failed assignments he became depressed and was not attending classes as regularly. He also said that he had negotiated an arrangement with Zenith whereby he only had to attend for a more limited period(two days per week he claimed) and that appeared to be an arrangement that was entered into after the applicant was successful in an appeal to the education provider and he entered into a study plan with the provider. The applicant said that he had appealed a decision by the education provider on the basis that he had back problems and that had interfered with his studies. He said he had written to the education provider about the issue but did not have medical documentation in relation to that claim in relation to the back condition. There are documents on the Department file in relation to the appeal and study plan issues. He told the Tribunal that he had resubmitted assignments to that education provider but he had been unsuccessful in terms of passing those courses or subjects. The Tribunal observed that the warning emails from Zenith regarding unsatisfactory attendance did not appear consistent with the applicant's claims that he had an arrangement that he only had to attend classes two days per week.

21. He agreed that he had only attended at Infotech professionals proprietary limited for one day and he claimed he did not continue in that course because he had received a telephone call from the Department informing him that he needed confirmation of enrolment with a university. He claimed that he became "scared" after the telephone call from the Department. He told the Tribunal initially he had not been enrolled in any courses for a period of about 12 months between around May 2015 until April 2016(when he enrolled in the English Academy). However he also claimed that he had been doing work at Zenith in terms of resubmitting assignments but he was unsuccessful in passing those subjects. The Tribunal had difficulty in clarifying the applicant's overall study activities in Australia. The Tribunal referred to the applicant's PRISM record and referred to the details in that record in terms of the applicant's study history. The applicant claimed that he left Zenith in May/June 2015 and he had been undertaking the certificate 4 course. He claimed that he was then not enrolled in any courses other than having attended at Infotech for one day in October 2015. The Tribunal referred the applicant to the warning emails forwarded by Zenith which appeared inconsistent in terms of dates with the applicant's evidence about when he ceased at Zenith. As indicated it was very difficult to get clear answers from the applicant about his study activities and about dates in relation to those activities.

22. He claimed that he then did not do any study after the one day at Infotech until he enrolled in the Academy of English course in April or May 2016. He enrolled after his student Visa had been cancelled. He then enrolled in the Diploma of Business with Management Institute of Australia. However the document dated 19 September 2016 from that provider suggests that the applicant was granted a qualification from that "via recognition of prior learning process" on the basis that the applicant appears to have provided information that allowed that Institute to be satisfied that the applicant satisfied certain criteria set out in the letter. The Tribunal noted that the information provided by Zenith in terms of email exchanges with the applicant indicates that his confirmation of enrolment with Zenith was not cancelled until October 2015. The Tribunal noted that on the applicant's evidence there was a period of at least six months where he was not enrolled in any course and that was from October 2015 until April or May 2016 and in those circumstances he was in breach of his student Visa in terms of the requirement to have no more than a two month gap between course enrolments. As indicated the applicant had claimed in his evidence that he had finished at Zenith in May/June 2015 and apart from one day at Infotech in October 2015 he had not been enrolled in any other course until April or May 2016. As indicated the Tribunal had significant difficulty in clarifying the applicant's study activities in Australia.

1. He told the Tribunal initially that he had confirmation of enrolment with Victoria University. The Tribunal asked if he had documentation in relation to that claim and he told the Tribunal that he had it on his "email" but he did not have any documentation with him at the Tribunal hearing. The Tribunal asked the applicant which course he had enrolment in and it took some time for the applicant to be able to identify the name of the course for which he claimed he had confirmation. He initially said it was a Bachelor of Business Administration but at times referred to it as a "certificate" and on other occasions said that it wasn't about Business Administration but about Information Systems. He then told the Tribunal that he was not sure of the name of the course but then told the Tribunal it was a Bachelor of Business Administration course. He subsequently told the Tribunal that he didn't have confirmation of enrolment because his student Visa had been cancelled but he had an email from the University about his enrolment in the course.

2. The Tribunal allowed the applicant some additional time to provide the documentation to the Tribunal from the University. The Tribunal noted the difficulties the applicant had in identifying the course. He claimed the course would cost around $15,000 per year and that the course would start next year. After the hearing the applicant by emails on September 26, 2016 and on 21 September 2016 forwarded an overseas student confirmation of enrolment document for Victoria University for a course entitled “Bachelor of Business (Information Systems Management)”. The number given for that course on the document that was provided is “7262 7893”. The PRISMS record that was discussed with the applicant during the hearing indicates that course enrolment as having been cancelled on 14 October 2015 for non-commencement of studies. The Tribunal had understood the applicant’s evidence at the hearing to be that he had a new/further confirmation of enrolment at Victoria University to undertake that course but the Tribunal was not provided with any documentation to support the applicant’s claims at the hearing in relation to that issue. The document that was provided refers to a course commencing on 27 March 2017 and finishing on 20 July 2018.

3. The Tribunal asked the applicant about his claims that he had been depressed and suffered from stress and about his claims that his mother was ill in India. The Tribunal asked the applicant if he had any medical documentation in relation to his claims about his depression which he claimed had prevented him from attending classes and had caused him to stay at home. The applicant told the Tribunal in response to Tribunal questions that he had never sought medical assistance from a medical practitioner in Australia and he had never seen a doctor in Australia and he had no medical documentation to support his claims that he was depressed and stressed and that had affected his studies. He claimed that he bought medication for his back pain "over-the-counter". There was no suggestion that the applicant had any prescribed medicines and as indicated he told the Tribunal that he had never seen a doctor in Australia to seek medical assistance.

4. He told the Tribunal that he was intending to undertake the Advanced Diploma course with Management Institute Australia and the course starts “next week” but the confirmation of enrolment provided to the Tribunal for that course indicates that the education provider is Elizabeth Bence proprietary limited, trading as Elizabeth Bence school of  fashion, Duke College. The applicant said that he had borrowed money to pay for the Management Institute of Australia course.

5. The Tribunal asked the applicant if there was any reason why he could not return to India if his student Visa remained cancelled. He said there was no reason why he could not return to India but that his family would be disappointed if he returned to India without qualifications. He said he originally came to Australia to study business administration. He said he wanted to improve his situation and that's why he came to Australia to study. He was asked what hardship issues would arise if his student Visa remained cancelled and he said his family had supported him financially and his mother was sick and he had not told his mother that his Visa had been cancelled in Australia and was concerned that if she found out that would cause her extra stress. He was asked by the Tribunal if there was anyone else affected in Australia if his student Visa remained cancelled and he said that his brother had recently come to Australia to study and was undertaking a bachelor of business course and his brother would be affected if the applicant had to return to India.

6. He was asked if there was anything else that he wished to tell the Tribunal in support of his claims.He said he wanted to improve his future and that if he returned without qualifications his mother would be upset and he was worried about her health in that context. He wanted another chance to study in Australia. The Tribunal had noted during the hearing that the purpose of the applicant being in Australia was to undertake study and that was the purpose of his student Visa.

7. The Tribunal allowed until 23 September 2016 for the applicant to provide further information in relation to his claims. As indicated the Tribunal received further documentation from the applicant after the hearing. On 21 September 2016 the Tribunal received a copy of an overseas student confirmation of enrolment, document number 7262 7893, for Victoria University for the course “Bachelor of Business (Information Systems Management)” for a course to be conducted between March 2017 and July 2018. On 26 September 2016 the Tribunal received a “completion letter” dated 25 September 2016 for the applicant from Management Institute of Australia referring to the applicant having completed the requirements for a Diploma of Business and providing a record of results document for that course as well as an award certificate for that course. The award document was issued on 25 September 2016. A further copy of the confirmation of enrolment for the Bachelor of business (Information Systems Management) offered at Victoria University was also provided.

8. The Tribunal has considered the applicant's evidence and the documentation provided by or behalf of the applicant and the information before the Tribunal in relation to the applicant's study activities in Australia. The Tribunal has also considered the applicant's credibility in relation to his evidence and his claims. The Tribunal has referred elsewhere in these reasons to its concerns about occasions when the Tribunal believed that the applicant was being evasive in responding to Tribunal questions. The Tribunal also considers that on occasions the applicant was vague in responding to Tribunal questions in relation to details about his study activities. The Tribunal also finds that there are inconsistencies between aspects of the applicant’s evidence to the Tribunal and in relation to claims made in his reply to the Department’s notice to consider cancellation of his student Visa. Those inconsistencies relate to his claims regarding his attendance at Zenith and when he acknowledged receiving warning notices about unsatisfactory attendance and about his attendance at Infotech  Professionals proprietary limited. Those  aspects have been referred to elsewhere in these reasons. Those issues and concerns by the Tribunal about those aspects were raised with the applicant during the course of the Tribunal hearing.

9. The Tribunal notes that the applicant claimed that he was depressed and stressed but also notes that the applicant's evidence to the Tribunal was that he had not sought any medical assistance in Australia in relation to those claimed conditions. The Tribunal has not been provided with any medical documentation in support of the applicant’s claims that he was depressed and stressed and that affected his study activities. The only evidence about those claimed conditions came from the applicant and from the letter of reference provided by his cousin who did not give any evidence before the Tribunal.

10. The applicant did not give any developed evidence to the Tribunal about his claim that he was depressed and stressed but rather just kept repeating that claim at various times during the Tribunal hearing without providing any significant detail in relation to that claim. He provided no detail as to how he claimed those conditions affected him other then to claim to have been affected in relation to his studies. He told the Tribunal that he had not sought to raise those issues with education providers despite the offer being made in warning letters/emails from Zenith for him to approach that education provider if he was having difficulties. He did approach the education provider about his claimed back condition in terms of affecting his studies.

11. As indicated elsewhere in these reasons the applicant referred to having not been enrolled in any course between October 2015 and April/May 2016 when he enrolled in the English Academy course. The Tribunal has also considered the inconsistencies between the applicant’s response to the Department in relation to the notice to consider cancellation of his student Visa and the evidence that he gave to the Tribunal about his study activities and his involvement with education providers. The Tribunal also notes, as indicated, that the applicant has not provided any other documentation in relation to his claims that he was depressed and stressed, other than his cousin’s reference.

12. The Tribunal's overall assessment of the evidence that has been referred to is that the applicant is not a credible  witness. The Tribunal has considered the relatively short reference letter provided by the applicant’s cousin but that reference does not alter the applicant’s assessment of the applicant’s credibility. The Tribunal’s overall assessment of the evidence that has been referred to about the applicants study activities since he has been in Australia is that the applicant is not or is likely not to be a genuine student.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116 (1) (fa) (i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

14. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

15. The Tribunal has referred elsewhere in these reasons to the applicant’s evidence that there are no reasons why he cannot return to India . The Tribunal has also referred to the applicant’s evidence about his family in India being disappointed if he returned to India without qualifications and the applicant claimed that his mother’s health might also be affected in those circumstances. He also told the Tribunal that he thought his brother who is now studying in Australia would be affected if the applicant returned to India. He did not indicate to the Tribunal that anyone else in Australia would be affected if he returned to India and his Visa remain cancelled. The Tribunal notes the reference provided by the applicant’s cousin in this context. As noted elsewhere in these reasons the Tribunal considers that the purpose of a student Visa is for the applicant to undertake studies in Australia. The Tribunal notes that the applicant’s family has provided support for the applicant to undertake his studies in Australia and the Tribunal acknowledges that there may be some financial hardship caused to the applicant’s family and to the applicant if his student Visa remains cancelled. The Tribunal also notes that the applicant has undertaken some further studies in Australia since he was informed that his student Visa had been cancelled in January 2016. He told the Tribunal that he intended to undertake further studies if he was allowed to remain in Australia. As indicated the Tribunal does not accept for the reasons that have been considered and discussed that the applicant is a credible witness and in those circumstances the Tribunal is not satisfied as to the applicant’s claims that the applicant would likely be a genuine student in the future if he were allowed to remain in Australia to study notwithstanding that he has undertaken some further studies in Australia. In this regard the Tribunal also notes the vague evidence and the documentation provided by the applicant about his claims to have been offered enrolment in a course at Victoria University.

16. The Tribunal has considered the totality of these issues.

17. Considering the circumstances as a whole, the Tribunal concludes that the visa should  be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    James Jolliffe
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.